Complainant

Respondent

Parties

Jackie  Deevy

HSE

Complainant

Respondent

Anonymised Parties

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Representatives

Niall O Sullivan Psychiatric Nurses Association (PNA)

Eamon Ross HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057544-002

05/07/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation. The parties were offered the opportunity to cross examine the witnesses.

As a preliminary issue it was noted that the workplace is a residential care setting. The respondent requested that references to the location be removed to ensure that no service users could be identified. Accordingly, the use of a generic phrase ‘workplace’ will be used throughout this decision.

The complainant submitted that she was not afforded rest breaks as defined in the Organisation of Working Time Act for the past 26 years. 

The complainant was assigned to work in a residential care location (‘workplace’). It was submitted that she is not rostered to take breaks. It was submitted that when the complainant’s union wrote to the respondent, they were informed that there were no official breaks in the service and that the staff take their meals in conjunction with the residents of the houses they work in, many of whom have challenging behaviour, to encourage social inclusion.

The complainant submitted that what the respondent is describing is what is called social modelling which is a clinical term for a theory that stipulates that we learn to imitate others by observing their behaviour and that we learn to behave in certain ways by watching others do what they do. This is not a rest break as defined by the Organisation of Working Time Act.

The complainant submitted that the European Court of Justice, in several of its decisions, have stated that you can be working or resting but not both as they are mutually exclusive.

The complainant submitted that in the Case of Nolan Transport v Jakonis Antanas (DWT1117), the Labour Court held that it is an employer’s duty to ensure that breaks are scheduled, not the employees.  It was further submitted that in the case of The Tribune and Publishing Group v Graphic Print and Media Union (DWT046), the Labour Court determined that the employer “is under a duty to ensure that the employee receives his equivalent rest period and breaks.  Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty”.

The complainant submitted that the Adjudicator should consider the European Court case of Von Colson wherein the made it clear that redress/sanctions should be appropriate to acting as a deterrent to repeating shortcomings/deficits in the future.

Complainant evidence:

The complainant noted that she was on duty in the mornings, dealing with personal care.  She noted that you might get your break at any time but there isn’t a staff room but rather a general kitchen area for breaks.  Under cross examination she confirmed that she was never instructed not to take a break.

The complainant noted that she was never given a proper break, she simply had to grab a cup of tea and a sandwich in the vicinity of the service user.  She noted that she was unaware of her entitlement to breaks.

The respondent submitted that the complainant works in a supported accommodation facility.  The service is delivered to a small number of residents, usually between 5 and 7, supported by nursing and health care staff with the aim of assisting them to live as independently as possible in their residential homes.

The respondent contended that the complainant was entitled to avail of breaks and that this has been clarified with her union.  It noted that there is adequate space within the house for staff to take their breaks in a relatively quiet atmosphere.  It was also noted that staff could use their car if they wanted to make phone calls, etc. during their break.

The respondent noted that the Organisation of Working Time Act was passed by the Oireachtas in order to comply with the EU Working Time directive. The respondent submitted that the Directive recognizes that it may not be possible to guarantee uninterrupted rest breaks for workers engaged in certain activities such as those that concern services relating to the reception, treatment or care provided by hospitals or similar establishments.  Accordingly, employers of persons employed in activities covered by S.I. Nos 21 and 52 of 1998 are exempted from the provisions of section 12 of the Organisation of Working Time Act.  The respondent submitted that this workplace falls within the provisions of the Statutory Instruments.

The respondent submitted that the issue around compensatory rest was considered by Kearns, P. in Stasaitis v Noonan Services Group Ltd (2014) E.L.R. 173.  In this case the complainant was employed as a security officer who monitored traffic in and out of a warehouse facility.  The employer did not schedule any specific breaks over the course of each shift but left it to the complainant to take breaks during periods of inactivity.  Kearns P ruled that as the complainant was permitted to take such breaks as he wanted during periods of inactivity and was provided with amenities and facilities to do so, the requirement to provide compensatory rest periods had been complied with.

The respondent submitted that it relied upon the exemptions provided for in the Statutory Instruments (S.I 21 & 52 of 1998) and on the ruling of Kerns P in relation to compensatory rest periods.

The Clinical Nurse Manager (Witness 1) and the Director of Nursing (Witness 2) gave evidence.  Witness 1 stated that the workplace was a residential unit for high dependency individuals (but not with challenging behaviour).  She stated that the complainant was only doing day shifts during the period in question.  She noted that there was no schedule of breaks done out in advance.  She stated that staff can take a 15-minute break and can avail of the kitchen which is common for both staff and residents.  She noted that staff have an opportunity to take breaks but can’t leave the premises unless it is for a cigarette.

Under cross examination, the witness was asked whether she ever directed staff to take a break away from the work area to which she responded, no.  When asked when do staff know their breaktimes, she conceded that there is nothing in writing only the assumption that breaks are taken. No rosters are written down.  She noted that she never expected staff to work a 12-hour shift.  It was noted that there is adequate space for breaks and that nothing in the Act requires the employer to provide a designated staff room.

The complaint being pursued by the complainant is that she was not afforded breaks under Section 12 of the Organisation of Working Time Act.  The respondent submitted that an exemption is provided for breaks in relation to the workplace in Statutory Instruments 21 and 52 of 1998.  I am satisfied that the workplace falls within the category of exemptions provided for in the Statutory Instruments – S.I. 21 & 52 of 1998.

Section 4 of S.I. 21 of 1998 states as follows;

“4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.”

The respondent put forward the notion of ‘compensatory rest’ and cited Kearns, P in the case of Stasaitis v Noonan Services Group Ltd (2014) E.L.R. 173.  In his decision Kearns, P held, amongst other things, that

“Under the requirements of the Organisation of Working Time (General Exemptions) Regulations 1998 the appellant is entitled to compensatory rest breaks and the respondent relies on reg.3 to claim that no breach of the appellant's rights has occurred. What falls to be determined is the classification of the terms “working time”, “rest periods” and “breaks”. As set out above all are defined under the Directive except for the term “break”. The terminology of domestic legislation must be determined in light of the wording and purpose of the Directive as per the European Court of Justice (ECJ) in Marleasing SA v La Comercial Internacional de Alimentatión SA Case C-106/89 [1990] E.C.R. I-4135; [1992] 1 C.M.L.R. 305. It is submitted on behalf of the appellant that the definition of the term “rest period” as referred to in Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana Case C-303/98 [2000] E.C.R. I-7963; [2001] 3 C.M.L.R. 42 and Landeshauptstadt Kiel v Jaeger Case C-151/02 [2003] E.C.R. I-8389; [2003] 3 C.M.L.R. 16 (cases where the issue of rest periods for doctors was considered) ought be differentiated from working time to mean that an employee cannot be both working and enjoying a break. The ECJ in that context held that in the case of a doctor, time “on call” was to be construed as working time. This however cannot be deemed to be analogous to the case presently before the court. The “rest period” is the time between shifts as opposed to a break which occurs within the working day. Although there is no set definition of “break” it must be interpreted in the particular circumstances of this case to mean that the employer must ensure that the employee is afforded the compensatory breaks as per the derogations under the regulation. The court must then move to the examination of the compensatory breaks afforded under national legislation.

In relation to s.6 of the Act of 1997 the appellant states that the employee was not provided with a compensatory or equivalent rest period or break in circumstances where the employee was not entitled to the “ordinary” rest period or break under ss.11, 12 or 13. Under s.6(2)(b) the employer has an obligation to make “such arrangements as respects the employee's conditions of employment as will compensate the employee”. These arrangements must compensate the employee for the derogation under ss.11, 12 or 13. As per s.6(3) the compensatory arrangements cannot be monetary or of any material benefit. However the requirement under s.6(2) may be met where the employee is provided with better physical conditions or amenities or services whilst at work as per s.6(3)(b). In this instance the employee was provided with kitchen facilities and an area within which to take breaks during periods of inactivity. The employee in this case was permitted to take such breaks as he wanted during periods of inactivity and was provided with amenities and facilities to do so. Therefore the requirement to provide compensatory rest periods in relation to the derogation from the statutory rest periods and or breaks must be deemed to have been complied with.”

The instant case differs from Stasaitis (above) in that there were no facilities for having a break that did not include the likelihood of taking a break with the residents.  This, to my mind puts the case on a similar footing to the doctor, mentioned by Kearns, P who is ‘on call’.  The complainant was not provided with conditions where they could ‘rest ‘: it appears that the employee was both ‘enjoying a break’ and ‘working’.

Section 25(4) requires the employer to maintain records of working time and/or breaks. This ensures the effective enforcement of the entitlements emanating from the Act, but also allows employers to check that employees are not working excessive hours, for example over a reference period. Where there are no working time records, the burden of proof to show compliance rests on the employer.

Where an employer is relying on the existence of exemptions, it is incumbent upon the employer to show that they are complying with any conditions imposed by the statutory exemption.  In this case the respondent did not record when the complainant took breaks, stating that it was for the complainant to take the breaks. However, no note of any compensatory breaks, if such were facilitated, was kept.

In the case of The Tribune and Publishing Group v Graphic Print and Media Union (DWT046), the Labour Court determined that

The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.

Accordingly, I find that the respondent has not discharged their duty. 

Having regard to the circumstances of this complaint I find that although the employee is entitled to breaks, the employer is entitled to rely on the Statutory exemptions.  The exemption relates to, in this case, Section 12.  It does not exempt an employer from keeping records required under Section 25(4).  Accordingly I find that the employer is only entitled to rely on those exemptions where it has maintained a record of the compensatory rest periods provided to the complainant and when they were taken in accordance with the Act. 

In addition, I find that the compensatory breaks where the complainant was still ‘on call’ – having a break at the same table as her charges, i.e. in the same environment as the residents she was supervising, does not amount to rest in all the circumstance of a residential care setting.

I find that the complaint is well founded.

In order to comply with the Act, I require the employer to keep records of all breaks taken by the complainant and the circumstances of the compensatory rest periods.

The complainant’s representative submitted that the Adjudicator should consider the European Court of Justice case of Von Colson wherein the made it clear that redress/sanctions should be appropriate to acting as a deterrent to repeating shortcomings/deficits in the future. The representative also noted that it appears the complainant has not had appropriate breaks for 26 years and accordingly is seeking an award on the upper end of what is allowable.  The complainant’s representative submitted that there was an ongoing breach of the provisions of the Act and that any remedy should have regard to that fact.  However, the cognisable period to this complaint is the six months prior to the lodging of the complaint with the Workplace Relations Commission

In the case of Murphy v Medfit Wellness Ltd, (DWT1717), the Labour Court made an award equivalent to 6 weeks salary to a receptionist whose employer failed to keep adequate records of her break times.  I am satisfied that this is a good place to start considering the issue of remedy. However, I note that the instant complaint differs from that case in that the complainant’s level of responsibility is higher and the respondent has admitted that they do not draft rosters of breaks nor maintain any records.  I am mindful of the decision of the ECJ in Von Colson.  In the circumstances I consider that an award of 10 weeks salary is appropriate, i.e. €11,203

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is well founded. I require the employer to comply with the legislation and maintain a record of breaks taken and the circumstances of the compensatory rest periods.   I also require the employer to pay compensation of €11,203 which is just and equitable having regard to all the circumstances.

Organisation of Working Time Act – Breaks – Statutory Exemptions – Compensatory rest periods – Records - compensation